THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: 2025- 002049
In the matter between:
KHAZAMULA SAMUEL MIYAMBU First Applicant
JOEY DE BRUIN Second Applicant
RAZIA GOOLAM Third Applicant
BUSISIWE NONHLANHLA MASHININI Fourth Applicant
and
STEVE TSHWETE LOCAL MUNICIPALITY First Respondent
MPUMALANGA DEPARTMENT: COMMUNITY SAFETY,
SECURITY AND LIAI SON Second Respondent
Heard: 30 JANUARY 2025
Delivered: 05 February 2025
(This judgment was handed down electronically by emailing a copy to the parties. The 05
th of February 2025 is deemed to be the date of delivery of this
judgment).
2
Summary: The licensing function performed by the First Respondent was
transferred to the Second Respondent. The Applicants employed in the
licensing department sought clarity on the terms of the transfer particularly in respect of their employment contracts. The First Respondent did not give the details and stopped paying their salaries from 1 July 2024 although the
Applicants continued to attend their work. The Applicants sought payment of
their salaries and other documents.
Held, because this was a transfer in terms of s 197 the services of the
Applicants were not interrupted and they are entitled to their salaries.
JUDGMENT
SEEDAT , AJ
Background [1] In 2023, the Second Respondent (Mpumalanga Department: Community
Safety, Security and Liaison (the Province)) gave notice to the First Respondent
(Steve Tshwete Local Municipality (the Municipality)) that it intended to take over the licensing department from the Municipality.
[2] On 31 January 2024, Mr Vuma, a director from the Province held a meeting
with staff at the Municipality to discuss salary offer s to the individual employees.
[3] The Municipality transferred the Licensing Department to the Province on 30
June 2024.
[4] The Applicants had some misgivings about their contracts of employment and
attempted to engage with Mr Vuma and senior employees of the Municipality. These
attempts were not successful.
3
[5] The Applicants continued to tender their services to the Municipality after 30
June 2024 but were not paid.
[6] The Municipality contended that the Applicants’ presence on its premises was
unlawful.
[7] On 7 January 2025, the Municipality gave the Applicants notice to
immediately vacate from the municipal premises.
[8] The applicants then sought relief before this court on an urgent basis seeking :
8.1 Payment of outstanding salaries from July 2024 to December 2024;
8.2 details of the Municipality’s assets and liabilities immediately prior to
the transfer ;
8.3 the transfer agreement between the Municipality and the Province.
[9] The application was not opposed by the Province.
Preliminary points
Confirmatory Affidavits
[10] The first point raised by Mr Makhubele, appearing for the Municipality, is that
the founding affidavit of the First Applicant was not supported by confirmatory
affidavit s by the other applicants.
[11] The applicants attributed this failure to attach the confirmatory affidavits to the
founding affidavit to a clerical error and filed the confirmatory affidavits of the
applicants subsequently . Interestingly all the affidavits were deposed to on 8 January
2025. This gives credence to the explanation that it was an omission by the attorneys to attach the confirmatory affidavits to the founding affidavit. Besides, the Municipality could not have been in any way prejudiced by this lapse.
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[12] Mr Makhubele was also unhappy with the fact that the full names of the
commissioner of oaths were not inscribed in the affidavit of the Third Applicant.1
[13] Rule 4(2) of the regulations promulgated under s 10 of the Justices of Peace
and Commissioners of Oaths Act2 requires the commissioner of oaths to sign the
declaration and print his full name and business address below his signature.
[14] The rules of the regulations have been held to be not imperative but
directory .
3 In S v Munn4 Van den Heever delivering the judgment of the full court,
stated: ‘Complianc e with the regulations [of the Justices of Peace and
Commissioners of Oaths Act ] provides a guarantee of acceptance in evidence
of affidavits attested in accordance therewith… Where an affidavit has not
been so attested, it may still be valid provided there has been substantial compliance with the formalities in such a way as to give effect t o the purpose
of the legislator …’
[15] In Van As N.O. and Others v Jacobs N.O. and A nother
5 where the
commissioner of oaths had neglected to place his full names, designation ex officio
and address on the founding affidavit, the full bench of the Nort h Gauteng High Court
held that “ courts regularly exercise a discretion to condone non- compliance if there is
substantial compliance with the Regulation” .6
[16] The confirmatory affidavits are in substantial compliance with the regulations
and I would allow them into evidence. This preliminary point is, accordingly,
dismissed .
Failure to comply with the Rules of the Labour Court
1 Mr Makhubele did not mention that the founding affidavit of the First Applicant suffered from the
same weakness in that it also did not reflect the full names of the commissioner of oaths .
2 Act 16 of 1963.
3 R v Sopete 1950 (3) SA 769 (E); Swart v Swart 1950 (1) SA 263 (O); Cape Sheet Metal Works (Pty)
Ltd v J J Calitz Builder (Pty) Ltd 1981 (1) SA 697 (O) .
4 1973 (3) SA 734 (NC) at 737.
5 [2022] ZAGPPHC 928.
6 Ibid, a t para 13.
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[17] Mr Makhubele takes issue with the fact that this application does not meet the
gener al requirements of applications . More specifically , he contends that the
application was filed on 7 January 2025 which fell within the period between 16
December and 15 January as defined in the Rules of the Labour Court. The
application should be dismissed because it was filed in the proscribed period.
[18] Mr Makhubele conveniently ignores the fact that urgent applications are just
that – urgent and the period of the dies non would not apply to matters that have to
be dealt with under compellingly pressing circumstances. Otherwise, the need for
urgency in courts would fall away.
[19] He also complained that the respondents were only given seven court days
(fourteen ordinary days) to file their answering affidavit.
[20] In urgent matters, invariably, there would be a contraction of the period
prescribed for ordinary applications for the filing of pleadings with a concomitant
imploration for condonation. This the applicants did.
[21] Again, given the nature of the claim (without making a determination on
urgency), this was not prejudicial to the respondent. This point, too, is dismissed.
Urgency
[22] The applicants aver that they did not want to sign the new contracts of
employment because they did not have sufficient details of the terms of the
contracts.
[23] For this reason, they met with senior management, in particular, Mr
Moetanalo, the Acting HR Director, and Ms Tshabalala, the Acting Municipal
Manager , either separately or together, at various times. In perceiving a lack of
willingness to attend to their concerns , the applicants lodged a grievance but to no
avail.
6
[24] Subsequently, a dispute was referred to the bargaining council where the
commissioner found that he lacked the authority to determine a salary dispute.
[25] On 6 November 2024, the applicants , together with the ir union, met w ith Mr
Moetanalo and Ms Tshabalala. In that meeting, Ms Tshabalala was unable to advise
on the status of the applicants. In a letter of 20 November 2024 to Ms Tshabalala,
confirming the discussion in this meeting, t he applicants were emphatic that there
should be no interruption of their services with the Municipality if they were to be transferred to the Province. The Municipality admit ted that the Municipal Manager
did receive this letter.
7
[26] Not having been paid for six months, the applicants were financially
depressed and had to rely on the goodness and genero sity of others to sustain them.
[27] The Municipality’s position is that the applicants had waited for six months
before approaching this court. The urgency, it maintains, was self -created.
The test for urgency
[28] Mr Makhubele is not correct when he submits that the “ test for urgency begins
and ends with whether the applicant can obtain subs tantial redress in due course” .
[29] In assessing the urgency of a matter, the court has to consider if the reasons
that make the matter urgent have been set out with sufficient cogency in the founding papers, whether the applicant will not obtain relief at a later stage and if it
would be in the interest of justice to entertain the urgent application. This may
include a consideration of whether the applicant has a clear or prima facie right,
apprehension of irreparable harm and the balance of convenience.
8 Not all these
factors have to be present and even the prominence of a single one can bolster
urgency.
7 Paragraph 115 of the Answering Affidavit .
8 Setlogelo v Setlogelo 1914 AD 221 at 227; Webster v Mitchell 1948 (1) SA 1186 (W) at 1188 .
7
[30] It is trite that an applicant is not entitled to rely on urgency that is self -created
when seeking a deviation from the rules. In National Police Services Union & others
v National Negotiating Forum & others9 this court held that the latitude given the
parties to dispense with the rules of the court in circumstances of urgency, is not
available to parties who are dilatory to the point where their very inactivity is the
cause of the harm on which they seek relief.
[31] Here, the parties were not inactive. They attempted to liaise with the senior
executives of the Municipality who did not respond to their concerns. Critical to their
deliberations was whether their past service with the Municipality would remain if
they were to be transferred to the Province. The Municipality has admitted that the
attempts to resolve the impasse were unsuccessful.10
[32] The Municipality agrees that the transfer of the licensing function from the
Municipality to the Province is a transfer of a business in terms of section 197
11 of
the Labour Relations Act (the LRA) .12
[33] Section 197(2) states that if a transfer of a business takes place –
‘(a) the new employer is automatically substituted in the place of the old
employer in respect of all contracts of employment in existence immediately before the date of transfer;
(b) all rights and obligations between the old employer and an employee at
the time of the transfer continue in force as if they had been rights and obligations between the new employer and the employee;
(c) …
(d) the transfer does not interrupt the employee’s continuity of
employment, and an employee’s contract of employment continues with the new employer as if with the old employer. ’
[34] Ngcobo J in the Constitutional Court in National Education Health and Allied
Workers Union v Univer sity of Cape Town and others
13 held that the effect of section
9 (1999) 20 ILJ 1081 (LC) at para 39.
10 Paragraph 121 of the Answering Affidavit .
11 Paragraph 86 of the Answering Affidavit .
12 Act 66 of 1995.
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197 is that the new employer takes over the employees and all rights and obligations
flowing from their contracts of employment . Van Niekerk AJ (as he then was) in
Douglas & others v Gauteng MEC for Health14 confirmed that section 197 governs
the terms of a transfer of a business without any variation of the existing contracts of employment.
15
[35] The Municipality gave the applicants new contracts of employment that were
to commence on 1 January 2025. This was repugnant to the imperative of a transfer in terms of the LRA and had the effect of disregarding the rights and obligations between the Municipality and the Applicants and obliterating the long service that each applicant had with the Municipality.
16 The fact that the Applicants were to
receive a higher remuneration from the Province does not detract from its lack of
compliance with a statutory requirement.
[36] Given the behaviour of the Municipality to brazenly disregard the provisions of
section 197 and for the applicants to endure financial hardship, it would not be in the
interest of justice to deny them relief just because they could seek substantial
redress in an application in due course. In the context of the case load of this court,
due course is a speculative concept. As Van Niekerk J said in National Union of
Metalworkers of SA on behalf of members & another v SA Airways (SOC) Ltd (in
business rescue) & others17 the “one factor that weighs most heavily in favour of the
applicants [who were claiming arrear salaries] is that relief will not be readily
available to them in the ordinary course” . And in East Rock Trading 7 (Pty) Ltd &
another v Eagle Valley Granite (Pty) Ltd & others18 the court confirmed that the rules
“allow the court to come to the assistance of a litigant because if the latter were to
wait for the normal course laid down by the Rules it will not obtain substantial
redress” .
13 2003 ( 3) SA 1 (CC).
14 (2008) 29 ILJ 1499 (LC) at para 31.
15 The new employer may vary the employment contracts so long as the changes are no less
favourable than the original contract.
16 First applicant: 28 years; Second Applicant: 15 years; Third Applicant: 28 years; Fourth Applicant:
18 years .
17 (2021) 42 ILJ 1256 (LC) at para 11.
18 [2011] ZAGPJHc 196 at para 6.
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[37] The applicants had attended the premises of the Municipality and the senior
executives particularly were aware of their presence. The applicants had tendered
their services. Weiner J in Matshazi v Mezepoli Melrose Arch (Pty) Ltd & another;
Nyoni v Mezepoli Nicolway (Pty) Ltd & another; Moto v Plaka Eastgate Restaurant & another; Mohsen & another v Brand Kitchen Hospitality (Pty) Ltd & another
19 said:20
‘It is trite that the duty to pay, and the commensurate right to remuneration, arises not from the actual performance of work, but from the tendering of services.’
[38] This was cited with approval by the court in Buys v Oasis Group Holdings.
21 In
HOSPERSA & another v MEC for Health, Gauteng Provincial Government22 Basson
J in ordering that the applicant be paid past and continued remuneration held:
‘… in the light of the fact that [the applicant] has tendered her services at her
workplace, she is entitled to her salary … and a unilateral withdrawal of her
salary is in breach of the Basic Conditions of Employment Act 75 of 1997.’
[39] The Applicants’ f ounding affidavit detailing the attendance and work done by
the Applicants has been answered by a bare denial by the Municipality in circumstances where the municipality was aware of the presence of the Applicants
on its premises and even engaged with them.
[40] Ordinarily, not receiving remuneration is not considered a ground for urgency.
However, said LaGrange J in Marques & others v Group Five Construction (Pty) Ltd
(Under Supervision) & others
23 in instances where the court has been given details
of “exceptional economic hardship… [it] might warrant the court from deviating from
the normal rule” .
[41] Tlhotlhamaje J in Munthali v Passenger Rail Agency of SA24 wrote:
‘I agree … that there is no immutable rule that financial exigencies cannot be invoked to lay a basis for urgency. This is so in that courts in any event enjoy a
19 (2021) 42 ILJ 600 (GJ) at para 39.
20 See too, Johannesburg Municipality v O’Sullivan 1923 AD 201.
21 (2022) 43 ILJ 1112 (LC) at para 29.
22 (2008) 29 ILJ 2769 (LC) at para 18.
23 (2020) 41 ILJ 677 (LC) at para 5.
24 (2021) 42 ILJ 1245 (LC) at para 9; Buthelezi v Rurik McKaiser Attorneys Incorporated & another
(2023) 44 ILJ 1512 (LC) .
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discretion in the overall determination of whether a matter should be accorded
urgency or not. I nasmuch as factors surrounding financial hardship on their own are
not a basis for according a matter urgency, these have to be determined together
with other facts and circumstances pleaded in the founding papers, which point to a conclusion that those facts and circumstances are exceptional, thus necessitating
that the matter should be treated as urgent.’
[42] In National Union of Metalworkers of SA on behalf of members & another v
SA Airways (SOC) Ltd (in business rescue) & others
25 Van Niekerk J agreed that as
a general rule, claims sounding in money are not regarded as urgent but this rule is
not absolute.
[43] Given the fact that because of the Municipality’s obstinacy in not disclosing
the status of the Applicants with regard to their past service, t he applicants have
suffered and continue to suffer extreme economic hardship. The circumstances are exceptional so as to approach the matter on the basis of urgency.
[44] The Municipality holds the intractable view that the Applicants were unlawfully
on its premises. If their presence was unlawful , access to the premises was not
denied. In fact they had the keys to the buildings and continued to occupy their
offices. The Municipality made no attempt to evict them either through a legal
process or with the engagement of the South African Police Services. T he Acting
Municipal Manager, Ms Tshabalala and the Acting Director: HR, Mr Moetanalo
continued to hold meetings with the Applicants sometimes even coming to their
offices. At no stage was the unlawfulness of their presence raised. The Municipality
gave no indication that the applicants had ceased to be employees. This was only done on 7 January 2025.
[45] Section 32(3) of the Basic Conditions of Employment Act
26 is unequivocal that
an employer must pay remuneration not later than seven days after completion of
the period for which the remuneration is payable.
25 (2021) 42 ILJ 1256 (LC) at para 11.
26 Act 75 of 1997.
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[46] The Applicants had tendered their services, the Municipality gave them
access to its premises and allowed them to occupy their offices. They continually
sought clarity from the Municipality on the status of their contracts of employment and met with the senior executives of the Municipality. In these circumstances, the failure to pay their salaries burdened the Applicants to strongly suggest an urgent
intervention.
Variation of the Order
[47] After listening to the arguments of both counsel at the hearing on 30 January
2024, I issued an order from a draft that had been prepared by the legal
representatives of the Applicants.
[48] On reflection, I now accept that prayers 2, 3 and 4 of the order were granted
in error.
[49] In terms of section 165(b) of the LRA , I therefore excise prayers 2, 3 and 4
from the original order.
Costs
[50] The applicants asked that costs be reserved.
[51] In the premises, I make the following order:
Order
1. The non- compliance with the forms and service contemplated in the
rules of this court is condoned and the matter is heard as one of urgency in
terms of rule 38 of the Rules of the Labour Court.
2. The First Respondent is ordered to immediately pay to the Applicants
outstanding salaries from July 2024 to December 2024 and to continue to do
so pending the determination of Part B to the Notice of Motion which application will be instituted within 30 days of this order.
3. Costs are reserved.
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S Seedat
Acting Judge of the Labour Court of South Africa
Appearances:
Applicant : Advocate AB Omar
Instructed by: Omar Attorneys
First Respondent : Advocate DF Makhubele
Instructed by: Nkgadima & Associates Attorneys Inc